The International Prisoner Transfer program, which is authorized by federal law and international treaties, is administered by the United States Department of Justice. A U.S. prisoner is not eligible for transfer to the United States until he has been sentenced by the foreign country. Once sentencing occurs the application process can be initiated. Whether the prisoner or the U.S. Embassy makes the formal transfer request to the foreign country will depend upon the terms of the particular treaty governing the transfer.
In addition to the requirement that the prisoner be sentenced, there are other general requirements that must be satisfied before a transfer can occur. The judgment and sentence must be final, which means that there can be no pending appeals or collateral attacks. There also must be sufficient time remaining on the sentence for an application to be processed. Normally this period is 6 months but sometimes it is a year. Some foreign governments require the prisoner to pay any fines or restitution that are imposed as part of the sentence before transfer can occur and sometimes even before the approval decision is made. Other treaties prohibit the transfer of certain types of offenses such as immigration, military and political offenses.
A prisoner who is interested in transferring should contact the Defender Services Division of the Administrative Office of the U.S. Courts to obtain advice as to whether a transfer would be an appropriate option for the prisoner. Some prisoners decide not to apply for transfer after consulting with a federal public defender (“FPD”) and learning that they will spend less time in custody if they remain in the foreign country than if they transfer to the United States and have their sentence administered according to United States sentencing provisions.
If the prisoner has questions concerning how his sentence will be administered in the United States, he should write to:
Chief, Defender Services Division
Administrative Office of the United States Courts
Washington, D.C. 20544
Attn: Prisoner Transfer Treaty Matters
In this letter, the prisoner should clearly state that he is seeking advice about international prisoner transfer and should provide the following information to allow the FPD to give the best advice possible:
- Full name and any aliases;
- Date and place of birth;
- Date of the offense and date of arrest;
- Precise offense of conviction including any known statutory cites;
- Sentence imposed including any fines or restitution;
- Any projected release dates through parole or other form of early release;
- Any labor credits or other prison work credits that may be earned;
- A detailed description of the offense that includes the foreign government’s version of the offense. This description should include whether a weapon was used or present when the offense was committed. If a drug offense is involved, the offense description should include the type of drugs involved and the quantity;
- A description of the prisoner’s role in the offense in relation to others who may have participated in the offense;
- Whether the prisoner cooperated, provided any confession or took any other action showing that he accepted responsibility for his unlawful conduct;
- An accurate description of his prior misdemeanor or felony record in the United States including prior sentences, whether he was under criminal justice supervision (probation, parole or supervised) at the time of the offense and whether any outstanding warrants exist against him; and
- An accurate mailing address where the prisoner can be reached.
The Federal Public Defender (FPD)
Upon receiving this information, the Defender Service Division will assign the matter to a FPD for review and response. If the prisoner has provided all of the information listed above, the FPD should be able to give the prisoner a reasonably informed estimate of how the foreign sentence will be administered in the United States should the prisoner be transferred there. Once the case is assigned, it usually takes 4-8 weeks for the FPD to respond to the prisoner with advice about the likely manner in which the sentence will be administered.
If, after receiving the information from the FPD, the prisoner still wishes to transfer, either he or the U.S. Consulate (depending on the requirements of the applicable treaty) should apply for transfer to the foreign government. Thereafter, the foreign government or the U.S. Consulate will assemble the necessary documents for the application package. This package will include the foreign sentencing documents, a summary and translation of the offense behavior and prisoner information, a copy of the travel document (proof of citizenship) and information regarding the prisoner classification and conduct. Once these documents are assembled they will be forwarded to the International Prisoner Transfer Unit (“IPTU”) of the Criminal Division of the Department of Justice. The IPTU will review the application and decide whether to approve the request. If both the IPTU and the foreign government approve the request, the IPTU will make arrangements for a consent verification hearing. At the consent verification hearing which is presided over by a federal magistrate and where the prisoner is represented by a FPD, a determination is made whether the prisoner understands the outcome of the transfer and whether he consents to the transfer. If the prisoner consents to the transfer, arrangements are made with the Federal Bureau of Prisons and the foreign government to transport him back to the United States where he will be incarcerated in a federal prison.
When the day for the transfer arrives, the prisoner should be prepared. He should have disposed of all of his belongings except for a small amount of personal property, e.g. glasses, medications, bibles, cash (preferably in a money order denominated in dollars), family photos etc. Other than a wedding band, no jewelry is permitted including watches, earrings and necklaces. Hair bands, clasps and braids will also be prohibited. Prohibited property and additional personal property like clothing, books and appliances should be mailed to the prisoner’s home before the transfer. Since the prisoner will likely wear leg irons for the transfer, a pair of socks for the day of the transfer is advisable. The prisoner will be subject to a full body search before transfer.
Once the prisoner is returned to the United States, the foreign sentencing documents will be copied and given to a United States Probation Officer. The probation officer will review these documents and then visit the prisoner to collect background information. After a brief investigation, the probation officer will prepare a “post sentence investigation report.” This report, which takes about 30-60 days to prepare, will include a recommendation as to the period of confinement and period of supervised release that would apply after considering the relevant United States Sentencing Guidelines. Thereafter, the United States Parole Commission will review the case and decide the length of time the prisoner should remain in prison and the period of supervised release that will apply when the prisoner is released from prison.
Family members and representatives can obtain additional information from two useful web sites. The first is from the Department of State site and the second is the Department of Justice site.
Prisoners who are applying for transfer may be represented by an attorney but need not be. The overwhelming majority of applicants to the prisoner transfer program are not represented by an attorney. Because of limitations imposed by the Privacy Act, 5 U.S.C. § 552a, the Department of Justice cannot provide information about individual prisoner transfer cases without a signed waiver of confidentiality from the prisoner. This law applies whether the inquiring party is the prisoner’s Congressman or family member.